R v Dawson Roderick (No 2) [2016] NZDC 3631

Published 01 August 2016

Discharge of defendant — propensity evidence — Children, Young Persons, and Their Families Act 1989, s 322 — historic sexual offending. In an earlier pre-trial ruling, the Judge had discharged the defendant on charges 11, 12 and 13 due to the defendant being under the age of 17 at the time of the alleged offending (“pre-age 17 charges”). Defence had raised s 322 of the Act, and the Judge had agreed discharge was appropriate; although the witness’s evidence could still be put before the jury as propensity evidence. These proceedings followed that decision with defence arguing that as the pre-age 17 charges were dismissed, the accompanying witness evidence could not appropriately be given to a jury even with directions, for the prejudicial effect outweighed the probative value. Further that charges post-age 17 should also be dismissed for inconsistency or incompatibility of the evidence. The Crown in response submitted that it would be constitutionally wrong to discharge the defendant on the additional post-age 17 charges, and that with proper direction the jury should be allowed to hear the evidence despite any inconsistency, which was a matter of weight, credibility and reliability. The Judge agreed with the Crown position, and acknowledged strong direction to the jury would be required. Despite the pre-age 17 charges being dismissed, it was still open for the Crown to lead a credible narrative which incorporated the witness’s evidence as propensity evidence showing a tendency to act and think in a particular way. Further that inconsistency or incompatible evidence was a matter to be weighed by the jury. **Note: names have been changed to comply with legal requirements.